Biggest Net Neutrality boosters question FCC proposal
The way that word is defined can tilt fortunes in the Web economy and set the course for how consumers use the Web today and in the future, proponets of the policy say.
Now, a group of law professors and public interest groups are telling the Federal Communications Commission that its proposed rules don't sufficiently define what that word means for Internet service providers like AT&T, Comcast and Verizon as they management traffic on their networks. In a letter to FCC Chairman Julius Genachowski sent this morning, the legal scholars -- all long-time proponents of net neutrality -- are asking the agency to clear up ambiguity on "reasonable network management" practices in a draft of rules. Here's the letter: NetN NPRM FCC professor letter.pdf (pdf)
"We trust Genachowski," said Tim Wu, a law professor at Columbia University and chairman of public interest group Free Press . Wu co-wrote the letter. "But this is a historic rule and this letter was in the spirit of looking at other FCCs and creating a stronger rule that sets a policy that lasts longer as opposed to something that is highly dependent on the whims of a commission in power."
As the proposed rules are written, they say, Internet service providers can work around loose interpretations of reasonable network management. There aren't clear standards in the draft rules for what is considered reasonable. This could allow ISPs to act as gatekeepers of the Web, giving greater priority to their own services over competitors, they say.
It was the first time net neutrality supporters have expressed skepticism of Genachowski's net neutrality push. The FCC chairman crafted President Obama's technology agenda, which highlighted open-Internet access rules and the spread of broadband Internet services to all U.S. homes as key underpinnings of energy, health, economic and education goals.
Addressing concerns by the public interest groups, FCC senior counselor Colin Crowell, stressed that the vote was the start of a long process. A spokesman at the FCC could not be reached to comment on the letter by law professors.
"We are at the very beginning of an open-multi-month public proceeding that will examine many key policy issues," Crowell said in a statement last Friday. "I am confident that the end result will reflect Chairman Genachowski's unwavering commitment to preserving the free and open Internet."
The red flags, the law professors say, are in two paragraphs buried deep in the 106-pages draft proposal. The graphs wade into technical and legal details about standards for "reasonable network management" and "nondiscrimination" of Web content.
In paragraph 137, the FCC appears to erase a standard for reasonable network management set by a rule against Comcast.
As background: the FCC passed a proposal to begin finalizing draft rules on Oct. 22, a process that should take at least four months as the public weighs in with comments. Broadly, the draft policy is meant to keep the Web open for consumers to access any legal content. It codifies existing principles that prohibit Internet service providers from blocking certain traffic on their networks and denying devices that can be used to access the Web. Genachowski threw in another principle that keep carriers from acting as gatekeepers by "discriminating" content on the Web, for example by sharing more for some content and services than others. A final principle would make those Internet service providers reveal how they run their networks to make sure they don't unfairly prioritize some content over others.
All six principles are subject to "reasonable network management" practices.
"We submit this extraordinary early letter only to flag what we believe are two ambiguities in the Notice that we hope can be addressed early to provide a clearer foundation for comments," wrote Wu, Stanford University Law professors Larry Lessig and Barbara van Shewick; Yale Law School's Jack Balkin; South Texas College of Law Professor John Blevins; and University of Louisville School of Law's Jim Chen.
In the FCC's recent rule against Comcast for allegedly blocking file-sharing site BitTorrent, the agency grappled for months about what it defined as "reasonable network management." Comcast argued that it's treatment of BitTorrent applications were within the bounds of reasonable traffic management.
Then-FCC Chairman Kevin J. Martin, in a controversial three-to-two vote against his party, ruled against Comcast and said that for a network management to be considered reasonable, it "should further a critically important interest and be narrowly or carefully tailored to serve that interest."
Public interest groups say that those standards provided a clear guidepost to carriers for how they could management traffic fairly (in times of national security, for example, or extreme congestions on shared pipes). Anyone arguing their traffic management is reasonable would have a steep hill to prove it was justified, they said.
But in the draft rules by Genachowski, specifically paragraph 137, those standards are thrown out.
We believe that this standard is unnecessarily restrictive in the context of a rule that generally prohibits discrimination subject to a flexible category of reasonable network management. We seek comment on our proposal not to adopt the standard articulated in the Comcast Network Management Practices Order in this rulemaking.
Cisco, a company that sells gear to manage traffic on Internet networks, said the Comcast standards were too strict. By erasing the standards established by the ruling against Comcast, network operators may be given more flexibility to manage traffic on their networks.
"This is an improvement," said Jeff Campbell, senior director for global policy and governmental affairs for Cisco. "Essentially, what Comcast decision said is that you always have to treat everything similar similarly. But there may be situations when that doesn’t make sense. Think it was a prudent change by the commission."
Public interest groups said the paragraph came as a surprise. They argue that keeping the Comcast order as a standard erases any doubt as the to the agency's intention to be firm on the rules.
"Reasonable network management is the heart of this whole thing," said Art Brodsky, spokesman for Public Knowledge, a public interest group... "The Comcast standard is a highly relevant and tightly drawn remedy."
He said language in that paragraph was rewritten until the last hour and was meant to assuage concerns by the two Republican commissioners. It appeared important, Brodsky said, for Genachowski to get unanimous votes, including from Republicans Robert McDowell and Merideth Atwell Baker, to move forward with the proposal.
And in paragraph 107, Genachowski appears to narrowly define "non-discrimination" as a term that would prevent ISPs for charging a content, application or service provider for enhanced or prioritized access to subscribers of broadband service. The draft suggests allowing that practice (think AT&T charging the commodities futures market for better and faster service for a dedicated broadband line for their users).
Public interest groups and the law professors say "non-discrimination" is more broadly defined and could include, for example, the practice of slowing some services and speeding others (think Washington Post content getting to users faster than news from the New York Times). And it asks Genachowski to explain if he has a wider view of non-discrimination.
photo: Tim Wu
credit: Free Press
November 2, 2009; 8:00 AM ET
Categories: Broadband , Net Neutrality
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